ECHR, Same-sex Marriages and The Daily Telegraph

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It’s been widely observed that, since it was taken over by Barclay Brothers, The Daily Telegraph has noticeably shifted downmarket and has come to resemble a broadsheet version of the Daily Mail. What perhaps a little less obvious is that The Telegraph’s religious outlook has shifted at the same time.

The Telegraph has long had the reputation of being the most conservative, and Conservative, of the broadsheets and back in the days when the Church of England was often referred to as ‘the Tory Party at prayer’ the generally convivial relationship that existed between the Anglican Church and the Conservative Party help to ensure that the Telegraph’s general line on the social issues of the day were not only reliably conservative but also reliably Anglican, if perhaps tending towards High Anglican.

In more recent times, however, The Telegraph has rather noticeably become the MSM’s leading purveyor of Roman Catholic propaganda, after the Catholic Herald, of course, and its therefore hardly surprising to find it peddling nonsense such as the following story, which has also now found its way, inevitably, into the Daily Mail.

Gay marriage is not a human right, according to European ruling.

Judges in Europe have ruled member states do not have to grant same-sex couples access to marriage, it was reported.

The ruling follows the launch of a consultation over gay marriage in the UK, in which the Equalities Minister promised a change in the law.

The European Court of Human Rights reached the decision in the case of a lesbian couple in a civil partnership in France, who complained they would not be allowed to adopt a child as a couple, according to the Daily Mail.

The pair, Valerie Gas and Nathalie Dubois, had tried to establish marriage rights under anti-discrimination laws but the judges said there had been no discrimination.

The court heard how the women had wanted Miss Gas to be allowed to adopt Miss Dubois’s 11 year-old daughter.

But the judges in Strasbourg said: “The European Convention on Human Rights does not require member states’ governments to grant same-sex couples access to marriage.”

“With regard to married couples, the court considers that in view of the social, personal, and legal consequences of marriage, the applicants’ legal situation could not be said to be comparable to that of married couples,” the judges added.

On the issue of gay unions, the judges said: “Where national legislation recognises registered partnerships between same sex, member states should aim to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a similar situation.”

The ruling is likely to have an impact on David Cameron’s drive to allow gay marriages.

Having got all that out of the way, we can now unpick this story properly.

The first thing to note is that the main case to which The Telegraph are referring, Gas and Dubois v. France (no. 25951/07), was not primarily about the question of whether or not gay marriage is a human right in the eyes of the European Court.

ECtHR’s own short summary of this case reads as follows:

The applicants were two cohabiting women. The case concerned the refusal of the first applicant’s request for simple adoption of the second applicant’s child.

No violation of Articles 14 (prohibition of discrimination) and 8 (right to respect for private and family life): the Court considered that the applicants’ legal situation could not be said to be comparable to that of married couples when it came to adoption by the second parent. It further saw no evidence of a difference in treatment based on the applicants’ sexual orientation, as opposite-sex couples who had entered into a civil partnership were likewise prohibited from obtaining a simple adoption order. In reply to the applicants’ argument that opposite-sex couples in a civil partnership could circumvent the aforementioned prohibition by marrying, the Court reiterated its findings regarding access to marriage for same-sex couples (judgment in Schalk and Kopf v. Austria).

First and foremost this case relates to France’s somewhat arcane legal framework for adoption. Gas and Dubois are a lesbian couple who’ve been cohabiting since 1989. In 2002 they entered into a civil partnership agreement; in France these are open to both gay and heterosexual couples and confer much the same rights in terms of tax, inheritance, etc.

In 2000, Dubois had a child by way of IVF treatment and an anonymous sperm donor; the child was conceived in Belgium, where the law does not afford the donor any parental rights, but born in France. In 2006, Gas applied to a French court to adopt the child, which they’ve both been raising, with the full consent of Dubois, and its here that things get a little strange – at least to British eyes.

Under France’s civil code there are two types of adoption, simple and plenary.

Simple adoption transfers parental rights to the adoptive family but leave some legal bonds between the adoptee and their birth family in place, mostly to do with inheritance rights. Plenary adoption, on the other hand, entails a complete severance of the legal relationship between the adoptee and their birth family. Gas applied for a simple adoption, which is much less onerous process than plenary adoption but as the French Civil Code only permits shared parental responsibility where a child is being adopted by the spouse of a child’s natural parent the application was turned down on the grounds that it would deprive Dubois of her parental rights*.

Gas and Dubois’s primary case was therefore that the Civil Code’s provision in respect of parental rights in simple adoptions were discriminatory, which they lost because France allows both gay and heterosexual couples to enter into civil partnership with the result that they weren’t being discriminated against because of their sexual orientation. As for the issue of same-sex marriage, this was thrown into the case as backup argument in an effort to find a workaround if the main argument failed, but this approach also failed due to an earlier ruling in Schalk and Kopf v. Austria, which was handed down in 2010.

At this point we need to move on to the ruling in Schalk and Kopf v. Austria and here ECtHR’s own summary reads as follows:

The applicants are a same-sex couple living in a stable partnership. They asked the Austrian authorities for permission to marry. Their request was refused on the ground that marriage could only be contracted between two persons of opposite sex; this view was upheld by the courts.

The Court first held that the relationship of the applicants fell within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would. However, the European Convention on Human Rights did not oblige a State to grant a same-sex couple access to marriage. The national authorities were best placed to assess and respond to the needs of society in this field, given that marriage had deep-rooted social and cultural connotations differing greatly from one society to another. No violation of Article 12 (right to marriage), and no violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

One thing that its important to understand here is that ECtHR has a long tradition of ducking the issue when it comes to cases which impinge on religious ‘sensibilities’ and for understandable reasons. The court’s notional jurisdiction spans countries that are highly secular and in which religion exerts very little influence over the law-making process, as is typically the case in Scandinavia, but it also covers countries in which religion remains highly influential, e.g Italy, Spain, etc. As such, when confronted with cases where religious beliefs are a significant factor, the Court has long shown itself to be extremely reluctant to hand down judgements which set European-wide precedents that are likely to prove highly controversial in countries where religion exerts a significant social, political and legislative influence, and one of the main ways it goes about dodging such issues is by referring them back to the national government of the country from the case originated.

So when the court states that ‘the national authorities were best placed to assess and respond to the needs of society in this field’ what its actually saying is that its unwilling to set a European-wide precedent on same-sex marriage, but if individuals countries decide that they want to legislate for same-sex marriage then that’s entirely up to those countries.

As such, the Telegraph’s claim that this ruling is ‘likely to have an impact on David Cameron’s drive to allow gay marriages’ is complete and utter bollocks. If Cameron believes he can get the necessary legislation through Parliament then, as Prime Minister, he’s fully entitled to introduce a bill that gives full legal recognition to same-sex marriages. The only ‘impact’ this ruling has on the Coalition’s current plans is that it gives the government the green light to press ahead with its proposals, safe in the knowledge that ECtHR has already ruled that its entirely up to national governments as to whether to grant legal recognition to same-sex marriages.

At the very end of the article, The Telegraph also offers the following ‘expert’ opinion:

Neil Addison, a specialist in discrimination law, told the Mail: “Once same-sex marriage has been legalised then the partners to such a marriage are entitled to exactly the same rights as partners in a heterosexual marriage.

“This means that if same-sex marriage is legalised in the UK it will be illegal for the Government to prevent such marriages happening in religious premises.”

Addison, according to his own ‘Religion Law’ website is a “Church going Roman Catholic with a strong belief in free speech” and, for a lawyer, his appear to exercise that last belief in a rather interesting and revealing fashion – for a lawyer – on his personal blog, as here, when commenting on a recent case in which two Scottish Midwives tried to use religious belief as justification for refusing to delegate, supervise and support staff* involved in the treatment of patients undergoing an abortion.

The facts are that Doogan and Wood are experienced senior Midwives who worked in a supervisory capacity in the Labour Ward of their Hospital. Due to changes in Hospital routines etc Abortions began to be performed in the Labour ward supervised by Midwives. (Personally I don’t know what kind of sicko in the NHS decided that a Labour Ward is the right place to kill unborn babies and that Midwives are the right people to train to be baby killers but that wasn’t an issue in the legal case) The change of policy put the two midwives in the situation that led to the case.

The facts are that neither of the midwives were being asked to take any kind of active role in the conduct of terminations, they were only required to supervise staff who were carrying out those duties while they were working on the Labour ward, i.e. while providing pre-operative and post-operative care.

As for the ‘sickos’ responsible for leaving women having terminations with no option but to be admitted to a Labour ward, that would the Roman Catholic Church, amongst others, as its because of the Catholic Church’s influence in Scotland that has prevented the development of network of independent sector clinics north of the border, leaving Scottish women with no option but to rely entirely on the NHS.

That’s all rather beside the point, of course, save for that whatever Addison’s expertise might be – and he has written a textbook on religious discrimination and hatred law, his comments mark him out as anything but an objective and and unbiased commentator, and his claim that affording legal recognition to same-sex marriages will make it illegal for the Government to such marriages happening in religious premises is complete and utter nonsense.

As things stand, the government is only proposed to recognise and provide for same-sex civil marriages, a change that will have no implications whatsoever for religious marriage practices and even when the bar on same-sex religious marriages is finally lifted – and I think it is going to be a matter of when, not if, it will on the basis that individual religions, and religious denominations, will be free to perform such marriage (or not) according to their own principles and beliefs.

It is a well established principle, certainly in English Law, that courts do not make rulings on or arbitrate theological or doctrinal matters save for where such matters have been expressly legislated for by Parliament and, as we’ve already seen, ECtHR is notoriously averse to tackling religious questions where a ruling of the court might set a European-wide precedent.

Moreover, if one is genuinely concerned with religious liberty then it follows that individual religions, and religious denominations, must be afforded the right to define marriage in terms of their own beliefs and sacraments, and not just the beliefs of a Imperial Church of Rome. If a particular religion, denomination or individual church is happy to perform marriage ceremonies for same-sex couples then its simply not the role of the state to interfere or prevent that happening, which is what it does at the moment.

Although much of the information contained in this article is factually correct, such as the assertion that ECHR does not confer a right to marriage on same-sex couples, the manner in which this information is presented by The Telegraph marks this article out as nothing more than another piece of misleading and wholly biased Catholic propaganda.

The facts are that neither of the midwives were being asked to take any kind of active role in the conduct of terminations, they were only required to supervise staff who were carrying out those duties while they were working on the Labour ward, i.e. while providing pre-operative and post-operative care.

So let’s say I’m a middle management type SS officer in Auschwitz-Birkenau. I never actually kill anybody directly or insert the Zyklon-B, but I do supervise the Totenkopf Verband who do the deeds, direct the trains make sure that *this* queue goes to “the showers”, I’m not culpable for the death of a single Jew?